Griffin v. Pearce

Spencer, C. J. — This proceeding has its origin in a petition filed by Henry E. Rader and others before the board of commissioners of Henry county asking for the establishment and construction óf a certain free gravel road m said county under the provisions of §7712 et seq. Burns 1914 (Acts 1905 p. 521; Acts 1918 p. 418). The petition was regularly referred to an engineer and two viewers, of whom the latter subsequently filed a Avritten report in which they stated that the proposed highway would not be of public utility. This report was not signed or concurred in by the engineer and, on motion of the petitioners, the board discharged said engineer and viewers from further consideration of the cause and appointed another engineer and two other viewers to consider the proposed improvement. Their report was favorable to the new road and such further proceedings were had as resulted in an order of the board of commissioners establishing the proposed highway and directing its construction. From this order an appeal was taken to the Henry Circuit Court, where appellees’ motion to dismiss the proceeding was sustained on the ground that the board of commissioners had no jurisdiction to proceed further in the cause, nor to appoint other and subsequent viewers after the first viewers had determined that the construction of the proposed improvement would not be of public utility. 1. Preliminary to a consideration of the question presented by this ruling, appellants insist that the appeal from the board of commissioners to the circuit court was perfected only by Frank G. Pearce, and that, as he is not shown to be an interested party, the appeal to the circuit court should have been dismissed. It is apparent from the record, however, that Pearce, although designated as principal in the [290] appeal bond, was not the only party appellant in the proceeding- before the circuit court, and as some of his coparties were affected by the proposed improvement, the motion to dismiss the appeal was properly overruled. 2. 3. We are of the opinion, also, that the action of the circuit court in sustaining appellees’ motion to dismiss the entire proceeding contains no error. Although the law made it the duty of the engineer to file a written report of his conclusions as to the proposed work, his failure so to do could not affect the report of the two viewers that the improvement would not be of public utility. It is well settled that the engineer is not a viewer within the meaning of the statute. Metsker v. Whitsell (1913), 181 Ind. 126, 135, 103 N. E. 1078; Thompson v. Goldthwait (1892), 132 Ind. 20, 24, 31 N. E. 451. And it. is equally clear that a report concurred in by a majority of any body is valid and binding in the absence of legislative provision to the contrary. Bronnenburg v. O’Bryant (1894), 139 Ind. 17, 20, 38 N. E. 416; Scraper v. Pipes (1877), 59 Ind. 158, 164; Hays v. Parrish (1875), 52 Ind. 132, 134; §240, cl. 2, Burns 1914, §240 R. S. 1881. 4. 5. There being but two viewers provided for in the statute under consideration, it follows that they must concur in any report which is made in order to render that report effective (Metsker v. Whitsell, supra, 135), and when they do concur their report is not affected as to its validity by the dissent of the engineer, whether indicated in an affirmative or a negative manner. In the present case, the report of the original viewers being that the proposed improvement would not be of public utility, [291] the board, of commissioners had no jurisdiction to proceed further with the cause. Judgment affirmed. Note. — Reported in 119 N. E. 8.